CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 mai 1998

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font-size:12pt } .s6463B60D { margin-top:12pt; margin-bottom:0pt; font-size:12pt } .s57DD0CAC { margin-top:0pt; margin-left:35.3pt; margin-bottom:0pt; text-indent:21.4pt; text-align:justify; font-size:12pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF GAUTRIN AND OTHERS v. FRANCE   (38/1997/822/1025–1028)                       JUDGMENT   STRASBOURG     20 May 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC’s-Gravenhage) SUMMARY [1] Judgment delivered by a Chamber France – no public hearing before Ile-de-France regional council and disciplinary section of National Council of ordre des médecins and lack of impartiality of those bodies I.   Article 6 § 1 of the Convention A.   Applicability Disciplinary proceedings in which what was at stake was right to continue to practise medicine as a private practitioner gave rise to “ contestations (disputes) over civil rights”. B.   Compliance 1.   Publicity (a)   Government’s preliminary objection (failure to exhaust domestic remedies) Objection based on failure to appeal on points of law to Conseil d’Etat – appeal would not have been an “adequate” and “effective” remedy in case before Court as Decree   no.   48 ‑ 1671 of 26 October 1948 expressly precluded holding in public hearings before professional disciplinary bodies and it was Conseil d’Etat ’s settled case-law that provisions of Article 6 § 1 were inapplicable to proceedings before them. Conclusion : objection dismissed (unanimously). (b)   Merits of complaint Recapitulation of Court’s case-law. It was not suggested that circumstances existed to permit dispensing with a public hearing – fact that hearing before Conseil d’Etat would have been in public was irrelevant. Conclusion : violation (unanimously). 2.   Impartiality (a)   Government’s preliminary objections (failure to exhaust domestic remedies) (i)   Failure to exercise right of challenge Remedy not “effective”: complaint not of bias on part of any individual member of disciplinary bodies in question, but of “objective” bias of those bodies; right to challenge could only be exercised in respect of individual members, impossible to challenge all members of the disciplinary section of the National Council of the ordre des médecins . (ii)   Failure to appeal on points of law Objection had been raised before Commission: Government not estopped. Remedy not “adequate”: if Conseil d’Etat had quashed decision of disciplinary section of National Council of ordre , it would not have been bound to rule on merits of case – if it had remitted the case, it could only have done so to same body without there being any requirement that it be differently constituted; it would have been only after a second appeal on points of law that Conseil d’Etat would have been required to decide case finally. Conclusion : objections dismissed (unanimously). (b)   Merits of complaint Conferring duty of adjudicating on disciplinary offences on professional disciplinary bodies did not in itself infringe Convention – it was nevertheless necessary that either professional disciplinary bodies themselves complied with requirements of Article 6 § 1 or that they were subject to subsequent review by a judicial body that had full jurisdiction and did provide the guarantees of that Article. There were two tests for assessing whether a tribunal was impartial. First consisted in seeking to determine personal conviction of a particular judge in a given case. Second – which was only one applicable in case before Court – consisted in ascertaining whether judge offered sufficient guarantees: Court verified whether applicants’ fears were objectively justified. There was a worrying connection between competitors of SOS Médecins and professional disciplinary bodies – composition of latter tended to justify applicants’ fears. Conclusion : violation (unanimously). II.   Article 50 of the convention A.   Damages Pecuniary damage: Court could not speculate as to conclusions disciplinary bodies would have reached if breaches found had not occurred. Non-pecuniary damage: judgment constituted sufficient just satisfaction. B.   Costs and expenses Partial reimbursement ordered. C.   Other claims Court had no jurisdiction. Conclusion : respondent State to pay applicants specified sums (unanimously). COURT'S CASE-LAW REFERRED TO 28.6.1978, König v. Germany; 23.6.1981, Le Compte, Van Leuven and De Meyere v. Belgium; 10.2.1983, Albert and Le Compte v. Belgium; 22.4.1994, Saraiva de Carvalho v. Portugal; 9.12.1994, Stran Greek Refineries and Stratis Andreadis v. Greece; 26.9.1995, Diennet v. France; 19.2.1998, Higgins and Others v. France   In the case of Gautrin and Others v. France [2] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A [3] , as a Chamber composed of the following judges:   Mr   Thór Vilhjálmsson , President ,   Mr   F. G ölcüklü,   Mr   F. Matscher ,   Mr   L.-E. Pettiti ,   Mr   C. Russo ,   Mr   A.B. B aka,   Mr   M.A. Lopes Rocha ,   Mr   P. Kūris ,   Mr   U. Lōhmus , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 23 February and 22 April 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the French Government (“the Government”) on 14 April 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in four applications (nos. 21257/93 to 21260/93) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under Article 25 by 105 French nationals on 7   January 1993. The first application was lodged by Mr Norbert Gautrin, the second by Mr   Jérôme Fillion, the third by Mr Dominique Mynard, and the fourth jointly by Ms Anne Allemandou, Mr Erick Altabe, Mr Jean-Jacques Assouline, Mr   Stéphane Aszerman, Mr   Alexandre Athea, Mr Michel Athouel, Mr Jean-Jacques Avrane, Mr   Alain Batarec, Mr Richard Benichou, Mr Laurent Bennaim, Mr Gabriel Benzaquen, Mr Jean-Pierre Bertaud, Mr   Jean-François Biffaud, Mr Pierre Bleichner, Mr Eric Bocquillon, Mr   Jean-Claude Boerner, Mr Bernard Bonduelle, Mr Franck Boumandil, Mr   Christophe Boyer, Mr Patrick Brasseur, Mr Jacques Bray, Mr Olivier Caste, Ms Sylvie Caupin, Mr Bruno Chaumont, Ms Claire Chauvin, Ms   Françoise Choquet-Croydon, Mr   Gilles Copin, Mr   Patrick Coulonges, Ms Catherine Daluzeau, Mr Jean-Luc Daubigny, Mr Arnaud Delaye, Mr   Jacques Denis, Mr Francis Diez, Mr   Patrick Drosne, Ms Marie-Anne Duchateau, Mr Henri Dumora, Mr Loïc Etienne, Mr Roland Fally, Ms   Lorraine Fouchet, Mr   Pierre Fournier, Mr   Denis François, Ms Agnès Frely, Mr Denis Gaildraud, Mr Bertrand Galichon, Mr Eric Gallois, Mr Jean Giffard, Mr   Gérard Grangeret, Ms   Patricia Guizol, Mr Jean-Claude Guzzo, Mr   Michel Herouard, Ms   Rolande Horowitz, Mr Eric Kohennof, Mr Gérard Lebars, Mr Jacques Lebas Delacour, Mr Dominique Lebrun, Mr   Jean ‑ Philippe Ledos, Mr   Philippe Leminez, Mr Christian Lherault, Mr   Jérôme Lichnierowicz, Mr   Patrick Machain, Mr Denis Magny, Mr   Henri ‑ Pierre Mao, Mr Dominique Marsault, Ms Elisabeth Miailhe, Ms   Annie Moan, Mr   Nabil Nassar, Mr   Jean-Yves Naudot, Mr Patrick Noblinski, Mr Denis Ovadia, Mr Jean-Claude Pessereau, Mr François Piot, Mr Marc Pisarik, Mr   Alain Pras, Mr   Jean-François Pret, Mr Jean-Marc Provini, Mr Louis-Marie Prudhomme, Mr Philippe Quenel, Mr Claude Raffour, Mr Patrick Rogel, Mr Thierry Rosier, Mr Joël Roth, Mr William Roussel, Mr Stéphane Rubinstein, Mr   Abraham Sabbah, Mr Louis Schoonoed, Mr Gérard Sedletzki, Mr René Serieys, Mr Didier Serrano, Mr   Serge Smadja, Mr   Claude Sylvain, Mr   Patrick Thibault, Mr Alex Toumson, Ms Nicole Tricoire-Goulier, Mr   Marc Uzan, Mr Laurent Vassort, Mr Jérôme Vidal, Mr   Jean-Louis Vincent, Mr Tan Vu, Mr Bernard Weill, Mr Jean-Paul Wellhoff, Mr Bruno Wilhelm and Mr Jean-Jacques Wolf. The Government’s application referred to Articles 44 and 48 and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46). The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article   6   § 1 of the Convention. 2.     With the exception of Mr Pret, who has died, the applicants stated, in response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, that they wished to take part in the proceedings. Mr Boyer and Mr   Fillion have instructed Mr Julien, of the Clermont-Ferrand Bar, to represent them before the Court, and the other 102 applicants Ms   Vally, of the Paris Bar (Rule 30). 3.     The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention), and Mr   R.   Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 28   April 1997, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr R. Macdonald, Mr C. Russo, Mr   M.A. Lopes Rocha, Mr P. Kūris and Mr U. Lōhmus (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently, Mr Bernhardt, who was unable to take part in the further consideration of the case, was replaced as President of the Chamber by Mr Thór Vilhjálmsson (Rule 21 § 6) and Mr   A.B.   Baka was called on to complete the Chamber (Rule 22 § 1); as he was also unable to take part in the further consideration of the case, Mr   Macdonald was replaced by Mr F. Gölcüklü (ibid.). 4.     As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, had consulted the Agent of the Government, Mr   M.   Perrin   de   Brichambaut, the applicants’ lawyers and the Delegate of the Commission, Mr J.-C. Soyer, on the organisation of the proceedings (Rules   37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the memorial of Mr Fillion and Mr   Boyer on 21   November 1997, the Government’s memorial on 24   November 1997 and the memorial of the other 102 applicants on 25   November 1997. The observations of the Delegate of the Commission were received by the registry on 12 January 1998. 5.     Having regard to the opinions expressed by the applicants, the Government and the Delegate of the Commission and having satisfied itself that the condition for derogation from its usual procedure had been met (Rules 26 and 38), the Chamber decided to dispense with a hearing in the case and Mr Bernhardt gave the applicants and the Government leave to file observations on the content of the others’ memorials. 6.     The additional observations of the Government and of Mr Fillion and Mr Boyer were received by the registry on 21 January 1998 and those of the other applicants on 22 January 1998. AS TO THE FACTS I.   the CIRCUMSTANCES OF THE CASE 7.     Associations called “SOS Médecins”, whose object is to provide emergency medical services on call to patients, have been set up in each département ; they have formed regional associations which in turn are part of a national association known as “SOS Médecins, France”. The applicants, who are medical practitioners in the Ile-de-France region, are all members of this organisation. A.   Background to the case 8.     A number of doctors’ unions and département council s of the ordre des médecins (Medical Association) lodged complaints with the professional disciplinary bodies against the members of those associations. They maintained, inter alia , that by using a flashing blue light without permission from the authorities and displaying the name “SOS Médecins” on their vehicles, in telephone directories and in advertising brochures, the members of the associations were contravening Article 23 of the Code of Professional Conduct, which prohibited advertising. Proceedings instituted against the applicants 1.   Before the regional council of the Ile-de-France ordre des médecins 9.     On 2 March 1989 the National Union of Duty Doctors lodged a complaint against each of the applicants with the regional council of the Ile-de-France ordre des médecins . The French Federation of Paris General Practitioners did likewise on 20 March 1989. It was alleged that the applicants had contravened Article 23 of the Code of Professional Conduct by displaying the name “SOS Médecins” on their vehicles and prescriptions. 10.     On 28 January 1990 the regional council, composed of Dr Fenoll, chairman, and Dr Barkatz, Dr Bernard, Dr Boissin, Dr Castello, Dr   Delamarche, Dr Gasch, Dr Groene-Richert, Dr Manheulle, Dr Pommey and Dr Sorrel-Dejerine, members, held that there had been a breach of Article 23 of the Code of Professional Conduct and suspended Dr Gautrin and Dr Mynard from practising medicine for two months and Dr Fillion and ninety-six other doctors for one month; the remaining six applicants received a reprimand. 2.   Before the National Council of the ordre des médecins 11.     The applicants appealed against those decisions to the disciplinary section of the National Council of the ordre des médecins . 12.     On 25 March 1992 that section, chaired by Mr Coudurier, honorary member of the Conseil d’Etat , and composed of Dr Dusserre, Dr Jung, Dr   Klepping, Dr Vergeylen, Dr Gatel and Dr Gilbert, members, upheld the decisions of the regional council as to the finding that there had been a breach of the Code of Professional Conduct, but reduced the penalties: Dr   Gautrin and Dr Mynard were suspended from practising medicine for fifteen days, the doctors who had received a month’s suspension were given a reprimand and those who had been reprimanded were given a warning only. The applicants were informed of the decision on 7 July 1992. They did not appeal to the Conseil d’Etat .              relevant domestic law and practice A.   The Code of Professional Conduct and advertising 13.     Article 23 of the Code of Professional Conduct provided: “Medicine must not be practised as if it were a trade. Doctors shall not use any form of advertising or publicity, whether direct or indirect. No medical exhibition shall be held or demonstration performed unless their purpose is exclusively scientific or educational.” 14.     The Code of Professional Conduct was reformed by Decree   no.   95 ‑ 1000 of 6 September 1995. It now provides that any doctor participating in a duty, emergency or on-call doctor scheme “... shall be permitted, when carrying out his task, to affix a removable badge to his vehicle bearing the words ‘doctor on emergency call’, but no others...” and that the badge must be removed “... as soon as his role in the emergency is over...” (Article 78). The code also now sets out, among other things, the information which doctors are allowed to reproduce on their prescriptions and in directories available to the public (Articles 79–80). B.     The disciplinary rules governing the medical profession 15.     It is compulsory for all doctors entitled to practise their profession in France to belong to the ordre national des médecins . This body ensures, among other things, that the principles of morality, probity and dedication essential to the practice of medicine are upheld and that all its members fulfil their professional duties and comply with the rules laid down in the Code of Professional Conduct. It discharges this function through département councils, regional councils and the National Council of the ordre (Articles 381 and 382 of the Public Health Code). 1.   Procedure (a)   Before the professional disciplinary bodies (i)   The regional councils 16.     The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins . Cases may be brought before them by, among others, the département councils, and doctors’ unions and individual registered medical practitioners within their territorial jurisdiction (Article   L. 417 of the Public Health Code). Regional councils may only deliberate validly if at least five of their members are present. Decisions are taken on a majority vote and must be reasoned (Articles 15 and 16 of Decree no. 48-1671 of 26 October 1948, as amended). 17.     The regional council of the ordre des médecins for the Paris area is made up of twenty-six full members divided into two chambers and of thirteen substitute members; they are all elected by members of the département councils (Articles L. 398 et seq.). Each chamber elects a chairman from among its members (Article L. 401). (ii)   The disciplinary section of the National Council 18.     The National Council of the ordre des médecins is composed of thirty-eight members, thirty-two of whom are directly elected by the département councils. 19.     After each election of a proportion of its members (every two years) the National Council elects eight of its thirty-eight members to constitute a disciplinary section – chaired by a senior member of the Conseil d'Etat – with jurisdiction to hear appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code). Substitute members are elected in the same way as full members (Article 21 of Decree no. 48-1671 of 26 October 1948, as amended, concerning, inter alia , the functioning of the disciplinary section). The disciplinary section may only deliberate validly if, in addition to its chairman, at least four of its members are present. Where the number of members present is an even number, the youngest practitioner must withdraw (Article 24, first paragraph, of the Decree of 26 October 1948, as amended). Appeals have, in principle, suspensive effect (Article L. 411 of the Public Health Code). (b)   In the Conseil d'Etat 20.     An appeal on points of law against decisions of the disciplinary section lies to the Conseil d'Etat (Article 22 of the Decree of 26 October 1948, as amended, and Article L. 411 of the Public Health Code) “as provided in ordinary administrative law” (Article L. 411 in fine of the Public Heath Code). Section 11 – which came into force on 1 January 1989 – of Law   no.   87 ‑ 1127 of 31 December 1987 reforming administrative proceedings provides: “... If it quashes a decision by an administrative tribunal of last instance, the Conseil d'Etat may either remit the case to the same tribunal, which shall, unless the nature of the tribunal makes it impossible, be differently constituted, or remit the case to another tribunal of the same type, or determine the merits of the case itself where the interests of proper administration of justice warrant it. Where a second appeal on points of law is brought in a case, the Conseil d'Etat shall give a final ruling on it.” 21.     At the time the events in the instant case occurred, the Conseil d’Etat held, following its settled case-law (extracts from its judgment of 29   October 1990 in the case of Diennet): “...the provisions of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are not applicable to disciplinary tribunals, which do not hear criminal proceedings and do not determine civil rights and obligations. Mr Diennet accordingly cannot challenge the decision appealed against on the grounds that it contravened the provisions of Article 6 § 1 of the aforementioned Convention relating to the holding of hearings in public and the impartiality of tribunals. ... although section 11 of the Law of 31 December 1987 provides that a tribunal to which a case has been remitted by the Conseil d'Etat must, unless the nature of the tribunal makes it impossible, be differently constituted from the one that gave the original decision, the disciplinary section of the ordre des médecins was, having regard to its nature, entitled, for the purpose of hearing the case remitted to it by the Conseil d'Etat acting in its judicial capacity in a decision of 15 January 1988, to be constituted as it had been on 30 January 1985, when it had given its first ruling. The grounds of appeal based on an infringement of the principle of the impartiality of tribunals and on the statutory provisions previously cited must therefore fail. ...” 2.   Penalties 22.     The following penalties may be imposed on doctors found guilty of disciplinary offences: a warning; a reprimand; temporary or permanent disqualification from performing some or all of the medical duties carried out for or remunerated by the State, départements , municipalities, public corporations or private corporations promoting the public interest, or the medical duties carried out pursuant to welfare legislation; temporary disqualification from practising medicine (for a maximum of three years); and striking off the register of the ordre . The first two penalties also entail loss of the right to be a member of a département council, a regional council or the National Council of the ordre for three years; the other penalties entail permanent loss of that right. A doctor who has been struck off cannot have his name entered in another register (Article L. 423 of the Public Health Code). 3.   Right of challenge 23.     A doctor against whom proceedings are brought may exercise a right of challenge before a regional council or the National Council, as laid down in Articles 341 to 355 of the New Code of Civil Procedure (Article   L.   421 of the Public Health Code). Article 341 of the New Code of Civil Procedure provides that a judge may be challenged: “... 1.   if he or his spouse has a personal interest in the dispute; 2.   if he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties; 3.   if he or his spouse is a blood relative or a relative by marriage of one of the parties or of the spouse of one of the parties up to the fourth degree inclusive; 4.   if there have been or are still legal proceedings pending between him or his spouse and one of the parties or the spouse of one of the parties; 5.   if the case has earlier come before him as a judge or arbitrator or if he has advised one of the parties; 6.   if the judge or his spouse is responsible for administering the property of one of the parties; 7.   if there is a relationship of subordination between the judge or his spouse and one of the parties or the spouse of one of the parties; 8.   if it is common knowledge that friendship or enmity subsists between the judge and   one   of   the   parties; ...” A party wishing to challenge a judge will be estopped from doing so unless he makes his challenge as soon as he becomes aware that a ground exists. “Under no circumstances” may a challenge be made after the hearing (Article 342 of the New Code of Civil Procedure). The challenge must “clearly set out the grounds and be accompanied by supporting evidence” (Article   344). On receipt of a challenge, the judge concerned shall “withdraw” until the question has been decided (Article 346). He has eight days in which to inform the court in writing whether he accedes to the request that he stand down – in which eventuality he shall be replaced immediately – or, if he does not propose to stand down, of the reasons for his resisting the challenge (Articles 347 and 348); in the latter eventuality, or if he does not reply, the challenge is “decided as soon as possible by a court of appeal or, if made against a member of a lay tribunal, by the president of the court of appeal, from whose decision no appeal shall lie” (Article 349). If the challenge is upheld, the judge is replaced (Article 352); if it is rejected, the challenger may be ordered to pay a civil fine of between 100 and 10,000   French francs without prejudice to any claim for damages that may be made (Article 353). To prevent an estoppel arising, challenges against more than one judge shall be made together unless a ground for challenge subsequently comes to light (Article 355). A challenge against all the judges of a chamber or a court of appeal is equivalent to an application for transfer of the case to another tribunal of the same type on grounds of bias (Rouen Court of Appeal, 12 July 1973, Gazette du Palais 1974, 43). No such application may be made in respect of the disciplinary section of the National Council of the ordre des médecins as there is no other body of that type to whom the case can be transferred ( Conseil d’Etat , 3 May 1957, Sieur Nemegyei, Recueil , pp. 279–80). 24.     Article 18 of Decree no. 48-1671 of 26 October 1948, as amended, provides, inter alia : “Members of regional councils may be challenged for the reasons set out in Article   [L.731-1 of the Judicature Code]. Challenges shall be made at least three days before the hearing starts. Members of the council who are related by blood or marriage up to the fourth degree inclusive to another member of the council or to the doctor ... concerned, members of regional councils who individually or as part of a group have occupational interests in common with each other or with the practitioner concerned, and any member who initiated the complaint that led to the disciplinary proceedings shall be precluded from hearing the challenge.” The grounds for challenge set out in Article L. 731-1 of the Judicature Code are the same as those set out in Article 341 of the New Code of Civil Procedure. 4.   Holding of proceedings in public (a)   The rules applicable at the material time 25.     Article 15, second paragraph, and Article 26, seventh paragraph, of Decree no. 48-1671 of 26 October 1948, as amended, provided: “Hearings shall not be held in public and the deliberations shall remain secret.” While the decisions of the disciplinary bodies of the ordre des médecins contained the names of the members who were present, they were recorded in a special register to which third parties did not have access and were not published. They were notified to certain individuals and institutions only (Articles 17 and 28 of the decree). (b)   The present rules 26.     Those rules were amended by Decree no. 93-181 of 5 February 1993. Hearings before a body of the ordre sitting to determine disciplinary charges are now held in public. However, the chairman of the body in question may, of his own motion or on an application by one of the parties or by the person whose complaint has led to the case being brought before a regional council, exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies (Articles 13, 15 and 26 of the Decree of 26   October 1948, as amended by the Decree of 5 February 1993). Decisions are now made public, but the bodies in question may decide not to include in the certified copies any details – such as surnames – which might be incompatible with respect for private life or medical confidentiality (Articles 13 and 28 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993). PROCEEDINGS BEFORE THE COMMISSION 27.     The applicants applied to the Commission on 7 January 1993. They complained of two breaches of Article 6 § 1 of the Convention in that, firstly, the hearings before the regional council of the Ile-de-France ordre des médecins and the National Council of the ordre had not been held in public and, secondly, those bodies had not been impartial. They complained also of a breach of their right to be presumed innocent, as guaranteed by Article 6 § 2, and of Article 13, in that they had not had an effective remedy before a national authority. 28.     On 27 November 1995 the Commission declared the applications (nos. 21257/93 to 21260/93) admissible as regards the complaints under Article 6 § 1. In its report of 26 November 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 in respect of both complaints. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4] . FINAL SUBMISSIONS TO THE COURT 29.     In their memorial Mr Fillion and Mr Boyer asked the Court to “declare the applications admissible and well-founded; hold that Article 6 § 1 of the Convention has been infringed in that the applicants did not have the right to: (a)     have their case heard in public (which the French Government do not contest); (b)     an independent and impartial tribunal; (c)     an effective remedy before a judicial body of full jurisdiction able to provide a legal solution within a reasonable time”. 30.     The other applicants asked “the Court to reject the French Government’s arguments and, consequently, to grant their requests as set out in their memorial”. 31.     The Government asked the Court to “dismiss the applications... (a)     as the Government’s primary submission, for failure to exhaust domestic remedies; (b)     in the alternative, in so far as it concerned the lack of impartiality of the disciplinary section of the National Council of the Ordre des médecins ”. as to the law I.   ALLEGED VIOLATIONs OF ARTICLE 6 § 1 OF THE CONVENTION 32.     The applicants complained that their cases had not been heard in public by an impartial tribunal. They relied on Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... public hearing ... by an independent and impartial tribunal... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” A.   Applicability of Article 6 § 1 33.     It is clear from the Court's settled case-law that disciplinary proceedings in which what is at stake – as in the instant case, regard being had to the penalties the professional disciplinary bodies could impose – is the right to continue to practise medicine as a private practitioner give rise to “ contestations (disputes) over civil rights” within the meaning of Article   6 § 1 (see, among other authorities, the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 29–32, §§ 87–95; the Le Compte, Van   Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series   A no.   43, pp. 19–23, §§ 41–51; the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, pp. 14–16, §§ 25–29; and the Diennet v. France judgment of 26   September 1995, Series A no. 325-A, p. 13, § 27). It was, moreover, not disputed before the Court that Article 6 § 1 was applicable to the circumstances of this case. B.     Compliance with Article 6 § 1 1.   Publicity of proceedings before professional disciplinary bodies 34.     The applicants maintained that there had been a breach of Article   6   §   1 because the proceedings before the professional disciplinary bodies had not been held in public. (a)   The Government’s preliminary objection 35.     The Government maintained, as they had previously done before the Commission, that the applicants could not be considered to have exhausted domestic remedies as required by Article 26 of the Convention as they had not lodged that complaint with the Conseil d’Etat . They did not dispute that at the material time it was the highest administrative appeal court’s settled case-law that Article 6 § 1 of the Convention was inapplicable to professional disciplinary bodies, but stated that there was a trend within that court towards “revising its position conceptually” bringing it in line with the Court’s case-law. Consequently, it could not be said that an appeal to the Conseil d’Etat would have been “bound to fail”. In support of that argument, the Government referred to the Conseil d’Etat ’s Département de l’Indre judgment of 29 July 1994, in which it had quashed a decision reached after a hearing by a “specialised body of the same sort as the disciplinary section of the National Council of the ordre des médecins ” that had not been held in public. 36.     The applicants submitted that an appeal on points of law would have been pointless, because in 1992, notwithstanding the Court’s case-law on the subject, it was the Conseil d’Etat ’s settled case-law that Article 6 § 1 did not apply to disciplinary bodies. In that connection, the judgment of 29 July 1994 cited by the Government was not relevant as it concerned a social-security tribunal, not a disciplinary body (the Conseil d’Etat did indeed accept that disputes concerning social security were “civil” in nature). 37.     In its decision on the admissibility of the applications, the Commission dismissed this objection on the ground that in view of the Conseil d’Etat ’s settled case-law an appeal on points of law would have been “definitely bound to fail”. The Delegate added that at the material time it was expressly laid down by statute that medical disciplinary hearings were not to be heard in public. 38.     The Court reiterates that Article 26 requires persons wishing to make an application to the Strasbourg institutions to have prior recourse to such domestic remedies as are “adequate” and “effective”. However, at the material time, firstly, Decree no. 48-1671 of 26 October 1948 expressly precluded holding in public hearings before the regional councils of the ordre des médecins and the disciplinary section of the National Council of the ordre and, secondly, it was the Conseil d’Etat ’s settled case-law that the provisions of Article 6 § 1 of the Convention were inapplicable to proceedings before those bodies (see paragraphs 21 and 25 above). In those circumstances, an appeal on points of law based on that complaint would not have been an “adequate” and “effective” remedy. The objection must consequently be dismissed. (b)   Merits of the complaint 39.     The applicants submitted that the fact that hearings before disciplinary bodies were not held in public amounted to a violation of Article   6 § 1. 40.     The Government acknowledged that Decree no. 48-1671 of 26   October 1948 – which was in force at the material time – expressly excluded a public hearing. They nonetheless maintained that if the applicants had appealed to the Conseil d’Etat they would have had a hearing that complied with the requirements of Article 6 § 1. 41.     The Commission noted that neither matters of professional secrecy nor the protection of the private life of the applicants or of their patients was involved, deduced therefrom that the applicants had a right to have their case heard in public and concluded that there had been a violation of Article   6 § 1. 42.     The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character protects litigants against the administration of justice without public scrutiny; it is also one of the means whereby people’s confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article   6   § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of t